Desiderio v. United States, 1:23-cv-00057

Plaintiff (personal representative of decedent's estate) moved for court authorization to serve Defendant Joy G. Harrison, M.D., by publication under Fed. R. Civ. P. 4(e)(1) and NMRA Rule 1-004(J).
Plaintiff reports process-server attempts at Harrison’s last known New Mexico employer and possible New York residences (Brooklyn, Oyster Bay) but claims no successful personal service.
Plaintiff stated affidavits of the process-server employees were attached to the motion, but no affidavits were filed on the docket.
Plaintiff did not attach the proposed publication notice or identify the newspapers for publication as required by NMRA Rule 1-004(K).
The Court denied the motion without prejudice for noncompliance with Rule 1-004(J) and (K) and for failing to show compliance with the service-hierarchy in Rule 1-004(F), but found Plaintiff’s efforts sufficient to show good cause to extend the 90-day service deadline.
The Court granted a 60-day extension to effect service and warned that failure to serve and file proof may lead to dismissal without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether service by publication is authorized via Fed. R. Civ. P. 4(e)(1) adopting state law (NMRA 1-004(J))	Plaintiff seeks publication based on unsuccessful personal-service attempts	Not raised	Denied without prejudice for failure to satisfy state-rule prerequisites (affidavits, proposed notice, publication plan)
Whether Plaintiff complied with NMRA Rule 1-004(K) (attach proposed notice; identify newspapers; publication schedule)	Claimed intent to publish but did not attach notice or identify newspapers	Not raised	Plaintiff failed to comply; renewed motion must attach proposed notice and name newspapers
Whether Plaintiff followed Rule 1-004(F) hierarchy of service attempts before resorting to publication	Asserts process-server attempts; affidavits allegedly filed	Not raised	Court requires a detailed showing that Rule 1-004(F)’s hierarchy was followed; renew must demonstrate this in detail
Whether the Rule 4(m) service deadline should be extended	Plaintiff’s efforts justify extension	Not raised	Court finds good cause and grants a 60-day extension to effect service and file proof

Clark v. LeBlanc, 593 P.2d 1075 (N.M. 1979) (publication limited in personam absent concealment by defendant)
T.H. McElvain Oil & Gas Ltd. P’ship v. Group I: Benson-Montin-Greer Drilling Corp., 388 P.3d 240 (N.M. 2017) (service by publication is a last resort; names/addresses must be not reasonably ascertainable)